from the fairness? dept

We have a variety of concerns with the so-called "Marketplace Fairness Act," which will require companies selling things online to track, collect and distribute taxes based on where buyers are coming from. For small and medium-sized businesses, this is likely going to be a big burden online (and for buyers in many places, this will likely increase what you have to pay on checkout). Given the fact that the bill is mostly supported by brick and mortar stores and shopping centers, it's not difficult to see how it's an attack on online shopping (for what it's worth, Amazon was initially against the bill, but eventually flipped when it realized that it could use the bill to hold back smaller competitors).

Unfortunately, the Senate passed the bill by a decent margin, 69-27. The bill will move to the House where it may be more difficult to pass. So it may die on the vine, even as the administration has said it will support it.

from the urls-we-dig-up dept

Commercials are always trying to get people's attention -- sometimes by being controversial and sometimes by being shocking. But even when a company tries to broadcast only sensitive and feel-good messages, there will always be some folks pointing out that companies don't really care about people as much as profits. Here are just a few advertisements that might have just missed getting their message across.

from the boom dept

Plenty of folks have been waiting to see how Judge Otis Wright would finally rule in the Prenda case he was overseeing. As you may recall, Judge Wright began to see through the tricks and facades put up by Brett Gibbs and Prenda, and eventually ordered everyone to show up in his courtroom (twice). The hearings, as you may recall, did not go well for Team Prenda and all its associated players. While Wright may be somewhat limited in what he can do to Prenda, it appears he's doing his best to throw whatever book he can at them, randomly using as many Star Trek references as he can cram into the tight 11 page order. The discussion lays out the details pretty clearly. We'll post the whole key part of the discussion, because it Judge Wright isn't wasting time and I'm sure many of you will appreciate it:

Steele, Hansmeier, and Duffy (“Principals”) are attorneys with shattered
law practices. Seeking easy money, they conspired to operate this enterprise and
formed the AF Holdings and Ingenuity 13 entities (among other fungible entities) for
the sole purpose of litigating copyright-infringement lawsuits. They created these
entities to shield the Principals from potential liability and to give an appearance of
legitimacy.

AF Holdings and Ingenuity 13 have no assets other than several
copyrights to pornographic movies. There are no official owners or officers for these
two offshore entities, but the Principals are the de facto owners and officers.

The Principals started their copyright-enforcement crusade in about 2010,
through Prenda Law, which was also owned and controlled by the Principals. Their
litigation strategy consisted of monitoring BitTorrent download activity of their
copyrighted pornographic movies, recording IP addresses of the computers
downloading the movies, filing suit in federal court to subpoena Internet Service
Providers (“ISPs”) for the identity of the subscribers to these IP addresses, and
sending cease-and-desist letters to the subscribers, offering to settle each copyright infringement
claim for about $4,000.

This nationwide strategy was highly successful because of statutory copyright
damages, the pornographic subject matter, and the high cost of litigation.
Most defendants settled with the Principals, resulting in proceeds of millions of
dollars due to the numerosity of defendants. These settlement funds resided in the
Principals’ accounts and not in accounts belonging to AF Holdings or Ingenuity 13.
No taxes have been paid on this income.

For defendants that refused to settle, the Principals engaged in vexatious
litigation designed to coerce settlement. These lawsuits were filed using boilerplate
complaints based on a modicum of evidence, calculated to maximize settlement
profits by minimizing costs and effort.

The Principals have shown little desire to proceed in these lawsuits when
faced with a determined defendant. Instead of litigating, they dismiss the case. When
pressed for discovery, the Principals offer only disinformation—even to the Court.

The Principals have hired willing attorneys, like Gibbs, to prosecute these
cases. Though Gibbs is culpable for his own conduct before the Court, the Principals
directed his actions. In some instances, Gibbs operated within narrow parameters
given to him by the Principals, whom he called “senior attorneys.”

The Principals maintained full control over the entire copyright-litigation
operation. The Principals dictated the strategy to employ in each case, ordered their
hired lawyers and witnesses to provide disinformation about the cases and the nature
of their operation, and possessed all financial interests in the outcome of each case.

The Principals stole the identity of Alan Cooper (of 2170 Highway 47
North, Isle, MN 56342). The Principals fraudulently signed the copyright assignment
for “Popular Demand” using Alan Cooper’s signature without his authorization,
holding him out to be an officer of AF Holdings. Alan Cooper is not an officer of AF
Holdings and has no affiliation with Plaintiffs other than his employment as a
groundskeeper for Steele. There is no other person named Alan Cooper related to AF
Holdings or Ingenuity 13.

The Principals ordered Gibbs to commit the following acts before this
Court: file copyright-infringement complaints based on a single snapshot of Internet
activity; name individuals as defendants based on a statistical guess; and assert a
copyright assignment with a fraudulent signature. The Principals also instructed
Gibbs to prosecute these lawsuits only if they remained profitable; and to dismiss
them otherwise.

Plaintiffs have demonstrated their willingness to deceive not just this
Court, but other courts where they have appeared. Plaintiffs’ representations about
their operations, relationships, and financial interests have varied from feigned
ignorance to misstatements to outright lies. But this deception was calculated so that
the Court would grant Plaintiffs’ early-discovery requests, thereby allowing Plaintiffs
to identify defendants and exact settlement proceeds from them. With these granted
requests, Plaintiffs borrow the authority of the Court to pressure settlement.

That last paragraph is the key one. Given all of this, Judge Wright looks at what he can do. First, he digs into the failure of Team Prenda to "conduct a sufficient investigation" into whether or not anyone they were suing actually infringed on the copyrights they held. However, he notes, his bigger concern is not the lack of sufficient investigation, but rather Prenda's attempt at a "cover-up" of this point as well as Gibbs' "hasty after-the-fact investigation, and a shoddy one at that." In fact, he calls certain statements from Gibbs concerning the investigation "a blatant lie."

Gibbs’s statement is a blatant lie. His statement resembles other statements
given by Plaintiffs in this and their other cases: statements that sound reasonable but
lack truth. Thus, the Court concludes that Gibbs, even in the face of sanctions,
continued to make factual misrepresentions to the Court.

However, he notes that even with this, it is inappropriate to impose Rule 11 sanctions (typically used for attorney misconduct) because the cases have already been dismissed. Wright then goes through a list of other deceptions by Prenda, including the Cooper forgery, ignoring the order blocking early discovery, the self-dealing with the copyright, the failure to disclose their own interest in the case, and other attempts to obfuscate facts. However, he notes, sanctions are still not the most appropriate, given that a decently large sanction wouldn't be effective because the plaintiffs "will transfer out their settlement proceeds and plead paucity."

However, he obviously does not feel they should be let off the hook. So he orders:

They have to pay the defendant's legal fees of $40,659.86, which he then doubles "as a punitive measure" to $81,319.72, noting "This punitive multiplier is justified by Plaintiffs’ brazen misconduct and relentless fraud."

He notes that "The Principals, AF Holdings, Ingenuity 13, Prenda Law, and Gibbs are liable for this sum jointly and severally, and shall pay this sum within 14 days of this order." Basically, all of them together are responsible for figuring out how to pay the money. As defined earlier, Steele, Hansmeier and Duffy are "the Principals" though I wouldn't put it past the three of them to claim that they are non-parties to all of this and thus not responsible for the payment.

The bigger issue: referring the conduct of Steele, Hansmeier, Duffy and Gibbs to various state and federal bars. As Wright notes: "there is little doubt that that Steele, Hansmeier, Duffy, Gibbs suffer
from a form of moral turpitude unbecoming of an officer of the court." That won't look good on a resume.

The even bigger issue: alerting the feds of possible racketeering violations:

though Plaintiffs boldly probe the outskirts of law, the only enterprise
they resemble is RICO. The federal agency eleven decks up is familiar with their
prime directive and will gladly refit them for their next voyage. The Court will refer
this matter to the United States Attorney for the Central District of California. The
will also refer this matter to the Criminal Investigation Division of the Internal
Revenue Service and will notify all judges before whom these attorneys have pending
cases. For the sake of completeness, the Court requests Pietz to assist by filing a
report, within 14 days, containing contact information for: (1) every bar (state and
federal) where these attorneys are admitted to practice; and (2) every judge before
whom these attorneys have pending cases.

And, finally, a smaller issue: Duffy and Gibbs, who are admitted to practice in California are referred to the "Standing Committee on Discipline." That's a relatively minor point given all of the above.

The end result may not yet be that satisfying for Prenda-watchers, but Team Prenda may still be in serious, serious trouble. This actually matches Ken White's predictions pretty damn closely, where he noted the limited ability to sanction, but focused on the referrals to the feds and to various state and federal bars. The inclusion of the IRS is an interesting one, as the evidence suggested that Team Prenda wasn't paying taxes on the money coming into the various shell companies.

So now we wait to see what, if anything, the feds will do -- though, as Ken noted, when a federal judge recommends such an investigation, the feds tend to follow through.

from the good-for-them dept

For many years we've wondered why countries bend over backwards to stay in the US's good graces concerning the infamous "Special 301" report, put together by the USTR. The list has no objective methodology at all. Instead, companies send their complaints to the USTR, and the USTR launders rewrites those complaints and puts certain countries on the "naughty" list. Back in 2007, Canada explicitly announced that it did not recognize the legitimacy of the list, by saying:

Canada does not recognize the 301 watch list process. It basically lacks reliable and objective analysis. It's driven entirely by U.S. industry. We have repeatedly raised this issue of the lack of objective analysis in the 301 watch list process with our U.S. counterparts.

And we've wondered why other countries do not do the same. When I was in Spain last week, a reporter I spoke to kept asking about the Special 301 list, as it seemed to be such a key concern for people there, and I noted that more countries should do what Canada does. I realize that there are other issues there, and Canada knows that the US isn't likely to create a trade war over the list, but it still seemed odd how seriously some other countries take the list.

The Chilean government said today it does not recognize as a valid instrument rating called "301 list" that makes the United States on violation of intellectual property rights and this year again includes the country in its Priority Watch section .

"This report is conducted outside the margins of the Free Trade Agreement between our country and the U.S., and therefore not recognized by Chile as a valid instrument rating," said a statement released this morning.

The "'301 List' lacks clear criteria for categorizing the different countries, but is rather a reflection of the interests of American industry selectively applying their intellectual property standards to other countries," it added.

Good for Chile to stand up for itself against the list.

Of course, it's no surprise that Chile got put on the list. As we noted last year, the country is actually a pioneer in strongly protecting intermediaries from liability, thus much more strongly protecting internet free expression and innovation. They're also actively encouraging innovation by luring startups to Chile with all sorts of benefits. Basically, Chile is quickly showing itself to be a supporter of innovation, which apparently isn't something the USTR wants to encourage.

from the good-for-them dept

The American Psychiatric Association's infamous DSM or Diagnostic and Statistical Manual of Mental Disorders is often called "the Bible" of classifications for mental illnesses, but it's perhaps almost as famous for its problems than for any usefulness. The list of criticisms and controversies over the DSM are pretty long, and there are significant concerns about the fact that it's not scientific, and that it falls sway to both extreme biases of psychiatrists and their overall profession as well as general cultural biases. The most famous bit of controversy, of course, is that it used to include homosexuality as a mental disorder -- which should be an indication of how trustworthy the book is (i.e., it's not, at all). More recently, the discussion to possibly include internet addiction (or, more officially "Internet Use Disorder" or IUD) in DSM-5 caused a fair bit of mocking.

That's why it's great to see that the National Institute of Mental Health has declared that it's effectively abandoning the DSM just as the APA releases the long awaited DSM-5. After highlighting many of the problems with the DSM, it notes:

But it is critical to realize that we cannot succeed if we use DSM categories as the “gold standard.” The diagnostic system has to be based on the emerging research data, not on the current symptom-based categories. Imagine deciding that EKGs were not useful because many patients with chest pain did not have EKG changes. That is what we have been doing for decades when we reject a biomarker because it does not detect a DSM category. We need to begin collecting the genetic, imaging, physiologic, and cognitive data to see how all the data – not just the symptoms – cluster and how these clusters relate to treatment response.

That is why NIMH will be re-orienting its research away from DSM categories. Going forward, we will be supporting research projects that look across current categories – or sub-divide current categories – to begin to develop a better system. What does this mean for applicants? Clinical trials might study all patients in a mood clinic rather than those meeting strict major depressive disorder criteria. Studies of biomarkers for “depression” might begin by looking across many disorders with anhedonia or emotional appraisal bias or psychomotor retardation to understand the circuitry underlying these symptoms. What does this mean for patients? We are committed to new and better treatments, but we feel this will only happen by developing a more precise diagnostic system.

As others have noted, this is a "potentially seismic move" since the NIMH is so central to funding so much research concerning mental health.

from the i'm-sure-tat's-effective dept

In yet another copyright trolling case, it appears that the trolls are so sloppy that they're suing over the same IP address for sharing the same file (the animated movie, Zambezia) in multiple cases. The story focuses on one guy, who has filed a motion to quash in response, noting that the sloppiness of filing three times raises significant questions about the trolling operation. Either they're incredibly sloppy and not very careful, or they're hoping that by repeating the same IP address in multiple lawsuits, at least one judge will let the subpoena go through, leading to the inevitable demand letter. Either way, it should raise some eyebrows from the court about why anyone would file against the same IP address for the same movie in three different cases.

from the i'm-sure-that-will-go-over-well dept

You may recall that in the course of the case against Kim Dotcom in New Zealand, it was revealed that the New Zealand intelligence service, the Government Communications Security Bureau (GCSB), illegally wiretapped and spied on Kim Dotcom. The GCSB's mandate is that it can only spy on foreign communications, but used its powers illegally domestically. While NZ prime minister John Key apologized for the episode, it has raised lots of questions about his role in the whole matter -- and when he knew the law was being broken. Other info has come out as well, including attempts to cover up the illegal surveillance, and the fact that the GCSB illegally spied on nearly 100 people. Dotcom is now suing the government over this whole mess.

Given all that, you might think that PM Key would be focused on putting in place safeguards to stop the system from being so abused in the future. Not so. Instead, as reader aster points out, Key is now trying to change the law to make it easier to spy on citizens and others in the country. In other words, he's seeking to legalize domestic spying for the intelligence agency. The new proposal would allow for domestic spying on citizens and residents if approved by PM Key. As if he didn't already appear untrustworthy in the matter, he's now suggesting that because it has to go through him, it'll somehow avoid abuses? Opposition politicians are pointing out how laughable it is that Key is now asking people to trust him personally that such spying powers won't be abused.

from the good-to-see dept

One of the key things that has been a major concern to us for many, many years is how much of copyright policy tends to be driven by faith-based claims about what must be best (often this falls into the "more must be better" category), rather than any objective analytical look at actual data and evidence. We were encouraged when the UK's Hargreave's Report did start to look at some objective data when it sought to understand how best to reform copyright in the UK. And we've been hearing encouraging things out of Australia as well. With copyright reform back on the table in the US, and Congress seemingly open to the discussion, having reality-based policy discussions will be more important than ever.

That's why it's actually quite encouraging to see a new report from the US National Research Council that has begun the process of calling for more objective data to inform the upcoming copyright reform debate. You can get the full PDF via the National Academies Press for free. They have an embedding widget which we've placed below as well, though it uses Flash, which is a bit annoying. The effort was funded by a broad coalition of organizations with a variety of different views on the issue, so it's not limited to just one particular view. For example, you've got copyright maximalist organizations like the MPAA and the BSA, but also Google and Pam Samuelson, who tend to take a different view on the appropriate level of copyright protection. There is also support from a number of different government and private foundations, including the National Science Foundation, the Alfred P. Sloan Foundation and the Ford Foundation.

The committee who put together this particular work also has a wide range of viewpoints covered, including Mitch Singer from Sony Pictures, former federal judge Marilyn Hall Patel who presided over the case against Napster, Chris Sprigman (law professor who wrote The Knockoff Economy: How Imitation Sparks Innovation and who has been featured prominently on Techdirt in the past) among a number of other big names with various viewpoints.

While the paper itself doesn't have any answers yet, it does highlight the key questions that we should be trying to answer, and indicates the beginnings of some research being done in that direction, with the likelihood of more to follow. I am a little annoyed that they still refer to things like the public's rights to access and use content as "exceptions" to copyright, because that feels unfairly limiting, but overall the direction of the work is quite encouraging. Here's a list of some of the initial questions they note it would be good to answer, if possible, which gives you an idea of the research areas they're interested in supporting and encouraging:

With respect to changing incentives for creators, distributors, and
users, research could help determine

how the expenses involved in creative expression and distribution differ across sectors and the role of copyright in generating
revenues to offset those expenses;

under what circumstances sources of monetary and/or non-monetary motivation outside of that provided by copyright are effective in motivating creative activity;

the motivations of various types of users and potential users of
creative works, including both infringers and lawful users; the
effects of enhanced enforcement remedies on promoting creativity, technological innovation, and freedom of expression; and

how the costs of distributing creative content are affected by
social media and other new technologies.

With respect to the enablers of and impediments to voluntary licensing
transactions in copyrighted works, research would help determine

the significance of transaction costs as barriers to utilization of
copyrighted works;

the extent of problems involving orphan works (whose owners
cannot be identified), user-generated content, and collaborative
and iterative works;

what are successful arrangements for managing transaction costs;

the roles of public and private institutions in facilitating licensing;

the relationship of transaction costs to legal rules such as compulsory licenses; and

changes in transaction costs with new technological and business
developments.

With respect to the enforcement challenges, research could help
determine

how much is spent by governments and private parties on copyright enforcement;

against whom enforcement efforts are targeted and what remedies are sought and granted;

the results of enforcement efforts in terms of compensation, prevention, education, and deterrence;

how the effectiveness of enforcement efforts is changing with the
expansion of digital networks;

the costs and benefits of current enforcement methods vis-a-vis
those associated with proposed new enforcement methods;

the relative vulnerability of different business models to infringement; and

the costs and benefits of fair use exceptions and the Digital Millennium Copyright Act (DMCA) safe harbors.

In assessing the balance between copyright protection and the statutory exceptions and limitations to copyright research could help determine

the costs and benefits of copyright exceptions and limitations in
terms of the economic outputs and welfare effects of those individuals, businesses, educational institutions, and other entities
that rely on them;

how copyright and the various categories of limits and exceptions
interact with innovative and/or disruptive technologies and platforms; and

what adverse effects, if any, exceptions and limitations have on
copyright holders and their potential to generate economic outputs and welfare effects.

Eventually, research will help inform decisions about key aspects of
copyright policy, including

the appropriate scope of copyright protection;

the optimal duration of the copyright term;

the best arrangements for correcting market imperfections that
inhibit voluntary licensing;

appropriate safe harbors and fair use exceptions to copyright;

effective enforcement remedies for infringing use and the
best arrangements for correcting deficiencies in enforcement
mechanisms;

the advisability of reintroducing a formal registration requirement; and

the advantages and disadvantages of reshaping the copyright
regime with different rules for different media.

The paper itself points to the concerns raised over things like SOPA and ACTA as reason to have a more empirical based approach to copyright reform, which is a good sign (and goes against those who insist that the SOPA protests had no real impact). The report goes into a lot more details, including a number of other important research topics as well.

One other point that they raise -- which is a key point we've brought up concerning our own Sky is Rising research -- is the need for those who have this data to be much more open about sharing it for the sake of making good overall policy. Since much of the data is considered "proprietary or subject to trade secrecy and privacy protections," the report outlines ways in which the data might be made available "on reasonable terms to qualified investigators." This, alone, would be a huge step forward in looking at many of the key policy questions above. The lack of real data is a huge impediment to being able to create effective policy.

All in all, it's a very good sign that this is underway, as it should really encourage a much more empirically-driven approach to the inevitable upcoming reform process. I hope that the results of future research driven by this particular effort do, in fact, play a role in any future debates on copyright reform. Moving from a faith-based look at copyright to an evidence-based one is a huge step forward, and long overdue.

from the that-doesn't-bode-well dept

After posting a bit about Michael Froman, the new nominee for USTR, I was already skeptical that he'd be any improvement over the predecessor, Ron Kirk. After all, Froman was deeply involved in three of the worst free trade agreements that the US has negotiated over the past few years, which more or less set the model for the ambitious and dangerously misguided ACTA and TPP agreements. However, some others have pointed out that it may be even worse, highlighting a Felix Salmon blog post from 2009, in which he calls Michael Froman out as being an "egregious example" of the revolving door problem we've highlighted between regulators and the businesses they regulate.

[Michael Froman's] one of the most egregious examples — up there with Bob Rubin, literally — we’ve yet seen of the way the revolving door works between business and government generally, and between Citigroup and Treasury in particular.

That's troubling, to say the least. Salmon points to a Matt Taibbi piece for Rolling Stone that highlights some very questionable activity on the part of Froman, including keeping his job at Citibank while helping to select the economic team for Obama's first term... the very folks who would be in charge of regulating Citibank.

Leading the search for the president’s new economic team was his close friend and Harvard Law classmate Michael Froman, a high-ranking executive at Citigroup. During the campaign, Froman had emerged as one of Obama’s biggest fundraisers, bundling $200,000 in contributions and introducing the candidate to a host of heavy hitters — chief among them his mentor Bob Rubin, the former co-chairman of Goldman Sachs who served as Treasury secretary under Bill Clinton. Froman had served as chief of staff to Rubin at Treasury, and had followed his boss when Rubin left the Clinton administration to serve as a senior counselor to Citigroup (a massive new financial conglomerate created by deregulatory moves pushed through by Rubin himself).

Incredibly, Froman did not resign from the bank when he went to work for Obama: He remained in the employ of Citigroup for two more months, even as he helped appoint the very people who would shape the future of his own firm....

That piece also talks about Froman's role in getting Timothy Geithner his job at Treasury, right after Geithner helped craft the bailout of Citibank that basically put all the risk on the Fed and didn't require any Citi concessions or exec changes, despite their own culpability in making a ton of bad investments.

Geithner, in other words, is hired to head the U.S. Treasury by an executive from Citigroup — Michael Froman — before the ink is even dry on a massive government giveaway to Citigroup that Geithner himself was instrumental in delivering. In the annals of brazen political swindles, this one has to go in the all-time Fuck-the-Optics Hall of Fame.

Wall Street loved the Citi bailout and the Geithner nomination so much that the Dow immediately posted its biggest two-day jump since 1987, rising 11.8 percent. Citi shares jumped 58 percent in a single day, and JP Morgan Chase, Merrill Lynch and Morgan Stanley soared more than 20 percent, as Wall Street embraced the news that the government’s bailout generosity would not die with George W. Bush and Hank Paulson.

I was hopeful that perhaps we'd get a USTR who was in favor of openness and transparency, but it looks like Froman may be the quintessential example of a backroom dealer, who already has a reputation for pushing through bad trade agreements.

from the time-to-get-past-a-bad-idea dept

Back in January, we noted our disappointment with the news that there was a proposal underway to add DRM to HTML5 (called "Encrypted Media Extensions" or EME), backed by Microsoft, Netflix and Google. It was further disappointing to see web creator Tim Berners-Lee defend the proposal, saying that it was necessary or "people will just go back to using Flash." While the W3C has tried to defend this position by saying that it's not really about DRM -- and has said it will convene a group to "investigate how to keep the Web maximally open" -- there are still pretty big concerns about this proposal. And it seems quite clear that DRM and locking up content is at the heart of it.

The video content we stream to customers is protected with Digital Rights Management (DRM). This is a requirement for any premium subscription video service. The Encrypted Media Extensions allow us to play protected video content in the browser by providing a standardized way for DRM systems to be used with the media element. For example, the specification identifies an encrypted stream format (Common Encryption for the ISO file format, using AES-128 counter mode) and defines how the DRM license challenge/response is handled, both in ways that are independent of any particular DRM. We need to continue to use DRM whether we use a browser plugin or the HTML5 media element, and these extensions make it possible for us to integrate with a variety of DRM systems that may be used by the browser.

This seems disingenuous. While Netflix and its studio partners may like DRM, there is no reason that it actually "is a requirement for any premium subscription video service." Lots of professional content and marketplaces work without DRM. Yes, some will copy, but most don't seem to bother. There is no reason that this needs to be built in, and there are many consequences for doing so.

In the past two decades, there has been an ongoing struggle between two views of how Internet technology should work. One philosophy has been that the Web needs to be a universal ecosystem that is based on open standards and fully implementable on equal terms by anyone, anywhere, without permission or negotiation. This is the technological tradition that gave us HTML and HTTP in the first place, and epoch-defining innovations like wikis, search engines, blogs, webmail, applications written in JavaScript, repurposable online maps, and a hundred million specific websites that this paragraph is too short to list.

The other view has been represented by corporations that have tried to seize control of the Web with their own proprietary extensions. It has been represented by technologies like Adobe's Flash, Microsoft's Silverlight, and pushes by Apple, phone companies, and others toward highly restrictive new platforms. These technologies are intended to be available from a single source or to require permission for new implementations. Whenever these technologies have become popular, they have inflicted damage on the open ecosystems around them. Websites that depend on Flash or Silverlight typically can't be linked to properly, can't be indexed, can't be translated by machine, can't be accessed by users with disabilities, don't work on all devices, and pose security and privacy risks to their users. Platforms and devices that restrict their users inevitably prevent important innovations and hamper marketplace competition.

The EME proposal suffers from many of these problems because it explicitly abdicates responsibilty on compatibility issues and let web sites require specific proprietary third-party software or even special hardware and particular operating systems (all referred to under the generic name "content decryption modules", or CDMs, and none of them specified by EME). EME's authors keep saying that what CDMs are, and do, and where they come from is totally outside of the scope of EME, and that EME itself can't be thought of as DRM because not all CDMs are DRM systems. Yet if the client can't prove it's running the particular proprietary thing the site demands, and hence doesn't have an approved CDM, it can't render the site's content. Perversely, this is exactly the reverse of the reason that the World Wide Web Consortium exists in the first place. W3C is there to create comprehensible, publicly-implementable standards that will guarantee interoperability, not to facilitate an explosion of new mutually-incompatible software and of sites and services that can only be accessed by particular devices or applications. But EME is a proposal to bring exactly that dysfunctional dynamic into HTML5, even risking a return to the "bad old days, before the Web" of deliberately limited interoperability.

The simple fact is that DRM doesn't work and has tremendous unintended consequences that tend to harm legitimate buyers of works. It decreases their value while doing little to stop infringement. Lots of people have realized this for years, but it's true that many in copyright-heavy fields still live under the delusion that DRM actually does something useful. And, it might: the only thing that DRM effectively does is give legacy players a veto right on new and innovative technologies.

That's really not something the W3C should be supporting -- nor, frankly, is it something that Netflix, Google and Microsoft should be supporting.

Business models for content work just fine without DRM. It's time that the industries producing content finally recognize that. Music has mostly gotten there, but clearly the movie industry is still behind the times on this one. If HTML5 provides enough value without DRM, Netflix and others will figure out how to adopt it eventually. The benefits of using it will just be too powerful to avoid, even if some freak out about the lack of built-in DRM. The industry needs to get over its silly obsession with DRM and to move forward with more compelling technologies and innovation.

from the do-the-math dept

Post sponsored by

As part of our sponsorship program with the Application Developers Alliance, we're highlighting some of the content on DevsBuild.It, their new resource website, that we think will be most interesting to Techdirt readers.

We've talked a lot about the tax on innovation that patent trolls create, which is well-known inside startup circles but often misunderstood by the broader public, thanks to the pro-innovation rhetoric of high-profile trolls like Intellectual Ventures. The conversation is getting more attention lately, especially with the recent news of Senator Schumer's patent reform bill which specifically aims to fight the patent troll problem, and this interview with an anonymous developer from a tech startup offers some perspective from someone who is directly affected by the issue.

from the takes-me-back dept

When cameras first came about there was a bit of a moral panic around them. People feared being photographed at all and so there were various concerns raised, moral panics followed, and even an occasional proposed law about how cameras could be used. It would appear that we may be approaching a similar moral panic around the coming launch of Google Glass. There's been a growing buzz about "privacy" concerns around Google Glass -- one that has even led former Homeland Security boss Michael Chertoff to worry about the implications, and suggest Congress and the FTC take a look. A publicity campaign called "Stop the Cyborgs" (seriously guys?) has sprung up offering Google Glass Ban Signs for places that want to ban the as-yet-unreleased technology. And, most recently, someone put together a White House petition urging the White House to ban the devices until "limitations on public surveillance" can be put in place. Not that the White House has that kind of authority, of course.

The whole thing seems to be screaming moral panic around a new technology, which still might not even catch on. Of course, even if Glass doesn't catch on, this is how technology works, and sooner or later, someone will get this kind of product right, such that eventually it won't even look odd like Glass, but will just fit into a contact lens or be directly embedded. That's just how this stuff is likely to go. People can freak out about it all they want and demand that there be a law, but most people recognize that the technology is coming one way or the other, and that's not going to change or go away. The right thing to do is figure out how to deal with it, rather than looking for ways to stop it. Though, just wait until someone at the MPAA wakes up and realizes that with Glass, someone will be able to record a movie...

from the the-government-can't-give-you-safety,-but-it-can-take-your-rights dept

When discussing NYPD Police Chief Ray Kelly's assertion that "privacy is off the table" as a result of the Boston bombing, I mentioned I hadn't heard any public outcry demanding the government and law enforcement step in and do something (i.e., curtail civil liberties) in response to the tragedy. The responses we were seeing seemed to be nothing more than legislators and law enforcement officials pushing their own agendas.

When given a choice, 61 percent of Americans say they are more concerned about the government enacting new anti-terrorism policies that restrict civil liberties, compared to 31 percent who say they are more concerned about the government failing to enact strong new anti-terrorism policies.

This is a vast improvement over 1996, when a post-Atlanta Olympics bombing poll showed only 23% opposed giving up freedom in exchange for fighting terrorism.

Breaking it down further, the poll also shows a bit of split along party lines. Self-identified Democrats are most likely to put their faith in government/law enforcement to make the U.S. "safer" by curtailing freedoms (51%). Republicans are less likely to favor this exchange (41%). For independents, less than a third (32%) are willing to give up some freedom to combat terrorism.

There is a bit of bad news contained within this generally positive indicator that Americans are less willing to give up something of theirs in exchange for the vagaries of "safety." The percentage of respondents who support additional surveillance in public areas has increased to 81% from 63% the week after the 9/11 attacks. On the other hand, there's a growing reluctance among Americans to allow the government to expand its surveillance efforts to cover more private venues, like email or cell phones. Only 38% approve of these efforts, down from 54% after 9/11.

Now, when legislators and law enforcement reps make strides towards reducing civil liberties, they do have some support. Those over the age of 50 (across all political parties) are most likely to support a loss of freedom (50%, as compared to only 34% for those under 50). Tellingly, this is pretty much the same demographic that feels video games are a bigger "safety threat" than guns (72% of respondents over the age of 45).

Unfortunately for the under-50 crowd, the over-50 demographic is historially the most active at the polls. If this perception of widespread support for invasive policies and legislation is going to change, the under-50 demographic is going to need to do a whole lot more voting. If not, these politicians are going to be able to truthfully say they have support for these policies -- at least, the only support that matters: die-hard voters.